Al-Skeini v. Secretary of State for Defense

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Citation. U.K. House of Lords. (2007) UKHL 26.

Brief Fact Summary. An appeal on a decision by U.K. authorities not to conduct an independent investigation into the circumstances of deaths was brought by the families (P) of six Iraqi civilians who were killed in 2003 where the United Kingdom (D) was an occupying power, on the ground that the Human Rights Act 1998 has extraterritorial application where the UK (D) is an occupying power.

Synopsis of Rule of Law. Where a victim is within the jurisdiction of the United Kingdom (D) for purposes of the European Convention on Human Rights, then the Human Rights Act of 1988 is applicable to acts of a U.K. public authority performed outside its territory.

Facts. In 2003, six Iraqis civilian were killed in Basra where the U.K (D) was an occupying power. The UK (D) armed forces shot five of these civilian dead while on patrol while the sixth was arrested but died in the military base. An investigation into the death of these civilian was not carried out by the UK authorities based on the premise that the death occurred outside the UK territory and hence the European Convention for Human Rights, which imposes an obligation for independent and thorough investigation, does not apply. The deceased family sued the UK.

Issue. Where a victim is within the jurisdiction of the United Kingdom (D) for purposes of the European Convention on Human Rights, is the Human Rights Act of 1988 applicable to acts of a UK public authority performed outside its territory?

Held. (Rodger of Earlsferry, L) (for the majority). Yes. Where a victim is within the jurisdiction of the United Kingdom (D) for purposes of the European Convention on Human Rights, then the Human Rights Act of 1988 is applicable to acts of a U.K. public authority performed outside its territory. The rule of statutory construction adopted by Lord Gingham must be taken against the background of international law, and jurisdiction under the HRA should be co-extensive with the interpretation given by the European Court of jurisdiction under the Convention. The Convention is applicable outside the territory of the United Kingdom (D) where the deceased were linked to the United Kingdom when they were killed. With the exception of the claimant who had been mistreated inside a British military detention unit, the claimants were not within U.K. jurisdiction within the meaning of the Convention.

Dissent. (Bingham of Cornhill, L.) No. the Human Rights Act of 1988 has no extraterritorial application. The claimants have to show that a public authority acted in contravention of the European Convention on Human Rights and the Human Rights Act of 1988 in order to succeed in this case.

Discussion. In actual fact, four Lords formed the majority (Lord Rodger included) and Lord Bingham was the sole dissenter. The basic rule been applied by Lord Rodger is that the presumption against extraterritoriality must be seen against the background of international law that Parliament had a legitimated interest in regulating the conduct of its citizen, and therefore could intend its legislation to affect their position in other states.